Motion for Remand Tips 28 USC 1447

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Litigation tips by Attorney Steve Vondran from the "litigation warrior" series. This video discusses the MOTON FOR REMAND under 28 U.S.C. 1147. Here is a general overview of the legal process from trying to take a removed federal case back to the State Courts:

1. Plaintiff files their complaint in the State Court

2. Defendant believes the Federal Court would be authorized to hear the case (there are basically two ways to get into federal court - DIVERSITY and FEDERAL QUESTION) and they remove within 30 days by filing Notice of Removal with the Federal Court under 28 U.S.C. 1441.

3. The State Court will be notified by the Defendants, and the state court will basically stay the case pending further instructions or orders from the Federal Court.

4. As Plaintiff, you need to review the pleadings and determine whether you have legal grounds to file the motion for remand. In other words, if you can show the federal court does not have subject matter jurisdiction over the case, (i.e. NO COMPLETE DIVERSITY exists or the $75,000 "amount in controversy" requirement cannot be met, or there is NO FEDERAL QUESTION), then you can file the motion for remand under 28 U.S.C. 1447.

5. The motion for remand should be filed under 28 U.S.C. 1447 and it should be cited that the the general rule is strictly construed "against" removal and Defendant bears the burden of proof to show the remand was proper.

6. If not proper, and if there is a violation of FRCP rule 11 (Defendants violating the rule that boilerplate removal motions not backed by the facts should be grounds for sanctions, costs and attorney fees under Rule 11, and for "improvident removal."

7. The federal judge will make the call. If he/she agrees, the case will be remanded back to state court. If not, the case will stay in Federal Court.

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